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Court confirms that teachers have a duty to protect children from sexual assault and molestation

On 17 March 2022, the Cape Town High Court delivered a judgment in an action for damages that was instituted following an alleged sexual assault. The first plaintiff, whose identity is kept private due to the sensitivity of the matter, had instituted the action against a Mr Swanepoel, the MEC for Education in the Western Cape and Vleiplaas Primary School (“VPS”). Mr Swanepoel is alleged to have sexually assaulted the plaintiff’s daughter when he was the acting principal and her class teacher at VPS. The plaintiff’s daughter was 12 years old at the time.

On the particular day of the alleged sexual assault, Ms Kees, a teacher at VPS, had been looking for the plaintiff’s daughter as she was meant to be on kitchen duty for VPS’ feeding scheme. After searching for the plaintiff’s daughter in classrooms and Mr Swanepoel’s office, Ms Kees came across the staff bathroom which was locked. After attempting to open the door, Mr Swanepoel said that he was in the toilet. Ms Kees then proceeded to stand by a tree in full view of the staff toilet, where she was later joined by Salome De Waal, a  local community member who regularly uses the school library. Both Ms Kees and Ms Waal saw the plaintiff’s daughter exit the staff bathroom followed by Mr Swanepoel shortly thereafter.

Days after the incident, the plaintiff’s daughter reported the matter to Ms Kees. She informed her that Mr Swanepoel had initially asked her to help him carry boxes but then instructed her to go to the staff toilet, where he joined her and sexually assaulted her. Ms Kees contacted the relevant education authorities, police and plaintiff’s mother.

At the disciplinary hearing, the presiding officer found that the case against Mr Swanepoel, on a balance of probabilities, had not been proved.

However, the Cape High Court disagreed with the finding of the presiding officer of the disciplinary hearing.

The court held that the onus was on the plaintiff to prove the alleged sexual assault on a balance of probabilities. In evaluating the evidence before it, the court pointed out that the plaintiff’s daughter’s evidence was largely clear and straightforward, but for a few immaterial inconsistencies. The plaintiff’s daughter’s evidence was also supported by both the evidence of Ms Kees and Ms Waal. The immaterial inconsistencies between the evidence of these parties, the court remarked, was expected for a matter that took place 10 years ago.

On the other hand, Mr Swanepoel elected not to testify at the disciplinary hearings. Therefore, the evidence of the plaintiff’s daughter was never controverted or refuted.

The court further remarked that the failure to lead expert evidence, especially when the plaintiff’s daughter’s own evidence was not challenged or considered not to be credible, could not lead to the plaintiff’s daughter’s evidence being rejected.

Lastly, the court highlighted that the presiding officer at the disciplinary hearing had failed to correctly apply the test for determining a matter on a balance of probabilities. This was due to the fact that there was only one version before the presiding officer and he could not attach weight to any version argued on behalf of Mr Swanepoel as he did not testify.

Consequently, the court found that the disciplinary hearing was a complete travesty and the outcome of the hearing should be disregarded. The court concluded that there were sufficient grounds for holding Mr Swanepoel liable to the plaintiff’s daughter for damages flowing from the sexual assault.

The court absolved VPS from liability because no evidence was led to show the duty the school owed to the plaintiff’s daughter.

However, the plaintiff pursued a claim against the MEC for Education on the basis that the MEC was vicariously liable for the actions of a teacher employed by it. The court pointed out that there was an employment relationship between Mr Swanepoel and the Education Department. The sexual assault took place at the school where Mr Swanepoel was employed as a teacher and acting principal. Consequently, the court found that the assault was sufficiently closely linked to the educational business.

It was also apparent from evidence that was led that Western Cape Education Department had the duty to vet educators for criminal records, which they had failed to do so in the case of Mr Swanepoel. The Western Cape Education Department also failed to ensure that Mr Swanepoel would not pose a threat to the children at the school he was employed at.

The court therefore concluded that the Western Cape Education Department had failed to discharge their duty to protect the plaintiff’s daughter and therefore it was jointly and severally liable with Mr Swanepoel for damages.

Mr Swanepoel had raised a counterclaim based on defamation. The counterclaim was dismissed as having no merit and was considered an abuse of process to scare off the plaintiff. In showing their displeasure, the court awarded Mr Swanepoel to pay punitive costs to the plaintiff, even though the plaintiff did not ask for punitive costs.

Sexual assault cases are often difficult to prove in criminal courts due to the evidentiary burden in criminal matters being proof beyond a reasonable doubt. This case highlights that a civil remedy for damages may come to the assistance of a victim and their family and may be easier to succeed with because the evidentiary burden in a civil court is not as stringent as the burden in the criminal courts.

The quantum of the damages that Mr Swanepoel and the Western Cape Education Department are liable to pay still needs to be determined.

Schools faced with sexual assault allegations often try to sweep the allegations under the carpet, because the fear is that if the allegations get out, the school’s reputation will be tainted. This case should be a warning to such schools that not dealing with the allegations promptly, fairly and decisively may expose the school to negative publicity years after the alleged incident, particularly if subsequently a damages claim is pursued in the civil courts against the teacher, the school and/or the Department of Education.

The court in this case reiterated that in terms of South African common law educators and those in charge of schools have a legal duty to take care of the children entrusted to them. Teachers have a positive duty to protect children from sexual assault and molestation.

Aslam Moosajee

Dispute Resolution | Executive

Inathi Mpapa

Dispute Resolution | Candidate Legal Practitioner